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parties are not sufficient to determine the nature of agreement, it is
apparent that these expressions are the starting point for determining
the nature of the legal relationship. As has been already indicated, the
usage of these two words in place of each other causes substantial
problems. This circumstance is mostly observed in translations made
from foreign languages into Turkish. The English word “guarantee” is
translated into Turkish both as “guarantee” and “suretyship”. However,
the nature of the agreement is not taken into consideration in the course
of translation. Therefore, the expressions used by the parties are impor-
tant in determining the nature of the agreement. Nonetheless, the clarity
of the parties’ expressions does not remove the need for interpretation.
Other criteria, which can be used, to distinguish between these two
agreements are the clauses stipulated in the agreement. Some of the
clauses stipulated in the agreement may indicate the presence of a
guarantee agreement, whereas some clauses may indicate the presence
of a suretyship agreement. For instance, it may be inferred that a waiv-
er of exception aimed at proceeding against the principal debtor
instead of the surety or the exception of foreclosure or waiver of the
right of recourse may indicate the presence of a suretyship agreement,
since the aforesaid exceptions are seen only in suretyship agreements;
and it may be accepted that the clauses on waiver of these rights can
only be regarded as a suretyship agreement. Additionally, a clause con-
cerning the several and joint liability of both parties may result in the
assessment of the security as a suretyship. Further, a reference in the
security agreement to the principal agreement from which the princi-
pal obligation arises may indicate the presence of a suretyship agree-
ment, since a suretyship agreement is an accessory to the principal
agreement, whereas a guarantee agreement is an agreement indepen-
dent from the principal agreement from which the principal obligation
raises.
Furthermore, clauses regarding payment on first request, being
bound by an unconditional and non-recourse obligation or the non-
existence of an objection right to the debt may result in the determina-
tion that the agreement is a guarantee agreement.
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